– the oral question to the Commission on state of play regarding the negotiations with Australia, the US and Canada on the use and transfer of passenger name record (PNR) data by Cornelia Ernst, Helmut Scholz and Søren Bo Søndergaard, on behalf of the Confederal Group of the European United Left – Nordic Green Left (O-000156/2011 – B7-0412/2011),

– the oral question to the Commission on state of play regarding the negotiations with Australia, the US and Canada on the use and transfer of passenger name record (PNR) data by Jan Philipp Albrecht, on behalf of the Group of the Greens/European Free Alliance (O-000159/2011 – B7-0413/2011),

– the oral question to the Commission on state of play regarding the negotiations with Australia, the US and Canada on the use and transfer of passenger name record (PNR) data by Birgit Sippel, on behalf of the Group of the Progressive Alliance of Socialists and Democrats in the European Parliament (O-000160/2011 – B7-0414/2011),

– the oral question to the Commission on state of play regarding the negotiations with Australia, the US and Canada on the use and transfer of passenger name record (PNR) data by Timothy Kirkhope, on behalf of the European Conservatives and Reformists (O-000164/2011 – B7-0415/2011),

– the oral question to the Commission on state of play regarding the negotiations with Australia, the US and Canada on the use and transfer of passenger name record (PNR) data by Sophia in ’t Veld, on behalf of the Group of the Alliance of Liberals and Democrats for Europe (O-000165/2011 – B7-0416/2011),

– the oral question to the Commission on state of play regarding the negotiations with Australia, the US and Canada on the use and transfer of passenger name record (PNR) data by Axel Voss, Simon Busuttil and Manfred Weber, on behalf of the Group of the European People’s Party (Christian Democrats) (O-000170/2011 – B7-0417/2011).

Timothy Kirkhope, author. − Mr President, I want to particularly thank the Commissioner for coming here this evening and of course Sophia in ’t Veld, our rapporteur, and all the other shadow rapporteurs who are still working hard on what has been a very long journey on these three PNR agreements.

I had hoped that in this plenary session we would be voting through the agreements between the EU, Canada, the US and Australia. However, for reasons which you have already heard and explained yourself, Commissioner, there are still outstanding issues.

I believe that the swift adoption of these agreements is essential and that such agreements are an essential tool in the fight against terrorism. I think it is right that we use this time to ask the right questions and gather as much information as we can from the Commission as to the compatibility of such agreements with European law, and on their practical implementation. These questions will no doubt be raised once again in my own report on the EU PNR agreement.

But, for me personally, the necessity and the proportionality of these agreements have been long apparent from the number of crimes they have helped prevent, and the number of criminals that they have contributed to catching. These are serious crimes and serious criminals: murderers, rapists, drug-traffickers, child-traffickers and terrorists. The questions which we are asking here this evening are incredibly important. Answers to them would make the process of decision-making for this House a lot easier and a lot more informed.

There will always be ideological differences within this House, for example as to how long data should be stored, and there are even those who would argue it should not be collected at all. But I believe we have reached a workable and reasonable conclusion on these questions which should satisfy all, with good safeguards and checks and rights for EU citizens.

We are at a crucial juncture, at which every negotiation and every process finds itself. A time when we have to move forward and do our jobs; when we have to look at what we have on the table and then make some positive decisions, and I hope that is the way that we will now go forward.

Sophia in 't Veld, author. − Madam President, I am very much looking forward to the answers to these very detailed questions.

I would like to start by adding yet another one. We know that South Korea and Qatar have repeatedly asked to begin negotiations with the European Commission for an agreement because they too are requesting the transfer of PNR. So far the Commission has turned their request down. That means that there is no legal basis for the transfer of data to those countries. We know that other countries will soon follow suit. I would like to know what the Commission’s course of action will be.

Secondly, I would like to highlight one point from the oral question, and that is the issue of necessity and proportionality. The demonstration that we had two weeks ago in Manchester of the use of PNR underlined what we have been saying here for a long time. PNR data can, in particular circumstances, be useful, maybe even necessary, when people cross borders, but the long-term storage of data concerning all passengers remains very problematic.

Essentially, what is being done is that data is stored because it may come in handy one day in order to solve crimes that have not yet been committed and that we are not aware of. That is not proportional and your own legal advisers and those of the Council agree. I look forward to your answer.

Cecilia Malmström, Member of the Commission. − Madam President, let me try to answer all these questions, which are indeed very detailed. But this is a good moment to take stock of where we are.

The negotiations with the US, Australia and Canada have now reached an advanced stage. The negotiations with Australia have been concluded and the Commission has recommended that the Council sign and conclude the agreement and put it to Parliament. The procedure for signing is pending in the Council due to parliamentary scrutiny in some Member States.

The negotiations with the US are well advanced but still ongoing. The draft text has been made available to the Council and to some members of the Committee on Civil Liberties, Justice and Home Affairs. The negotiations with Canada are also ongoing. There have been delays due to the parliamentary elections in Canada. We hope to be able to present you with a draft text very soon but I cannot undertake to do so before the summer break.

So important decisions will shortly be made on these three agreements. Ms in ’t Veld and certain others mentioned agreements concerning numerous countries, but the aim is to make a single joint multilateral agreement out of these three bilateral agreements. But that is for later, there are no negotiations whatsoever ongoing with any other country.

Let me start with a few remarks on necessity and proportionality and on profiling. The question of necessity and proportionality is something you face in many issues, including EU PNR. It is a very important question.

This issue was analysed in depth in both our communication on PNR from last year and the impact assessment that accompanied the proposal for an EU PNR. The analysis essentially revealed three things: firstly, PNR is used by a growing number of countries globally to prevent and to bring to justice those guilty of serious crimes and terrorism. Serious crimes and terrorism continue to cause very serious harm to victims, as well as to the economy and citizens’ sense of security.

Secondly, PNR can make a unique contribution because it helps identify people who are not known to be involved in criminal activities but whose travel patterns fit with those of drug smugglers or human traffickers. In other words, while simple passport data may not be enough to catch criminals already on the wanted list, PNR data makes it possible to identify a wider range of persons who are likely to pose a security risk.

Thirdly, there is evidence that PNR data has already been successful in preventing and fighting serious crimes and terrorism, both in Member States and in third countries. Data has been particularly important in identifying and dismantling criminal networks involving crimes such as drug-smuggling and human trafficking. My services have already met with you once to present evidence on the necessity of PNR and there will be a follow-up meeting tomorrow.

The Commission is therefore convinced that PNR is an important tool in fighting serious crime and terrorism, when it is complemented by strong data-protection guarantees and when the necessity and proportionality principles are respected.

The issue of profiling was also raised. That has been discussed already and there is no exact definition of it in EU law. Profiling is generally understood to be an automatic data processing technique where a profile is applied to an individual in order to take a decision that affects him or her.

There are, therefore, three different uses of PNR: firstly, reactive use in specific investigations after the flight. Secondly, real-time use prior to the flight, by checking PNR against pre-determined risk assessment criteria and against databases on wanted persons. Thirdly, there is pro-active use – also known as trend analysis – to create or update risk assessment criteria.

Of these three uses of PNR data, only one – real-time use – might potentially be considered to be a form of profiling, in this case the checking of the PNR against pre-determined risk assessment criteria. To ensure that this use will not adversely affect individuals, the new EU-Australia PNR agreement explicitly prohibits automated processing and always requires human involvement before adverse decisions are taken on the basis of PNR data.

This prohibition was not present in the PNR agreement from 2007, so it is an important step forward. The Commission is seeking to have the same provisions included in the US and Canadian agreements. A similar provision is also included in the Commission’s proposal for the directive on the European PNR.

The Commission’s approach to both the European PNR and PNR agreements with third countries is therefore in line with EU data protection legislation, which grants every individual the right not to be subject to a decision which produces legal effects concerning him or her, and which is based exclusively, or to a decisive extent, on automated processing of data on him or her. Against this background, the Commission is not convinced of the need to develop any new legal definition of profiling.

On the EU-Australia agreement, the Commission’s view is that the new agreement respects the Council’s negotiating mandate and the resolution of this House. We consider that it respects the principles of necessity and proportionality. We should bear in mind that the agreement has a well-defined and specific purpose limitation – a limited period of detention of all PNR. PNR will be masked-out a short time after the flight and stored anonymously. Strict conditions apply on transfers of data to third countries and PNR must be transmitted by air carriers exclusively by the ‘push’ method. The question of proportionality should be viewed in the general context of the laws of the third country, in this case Australia, and the security threat faced by that country.

Members have raised important questions on dispute resolution, suspension and termination. The procedures for terminating the agreement would be the same as those for concluding the agreement and therefore Parliament’s role is fully assured.

Suspension of the agreement is regulated by Article 218(9) of the Treaty. There is no formal role for Parliament. However, a parliamentary resolution calling for a suspension would certainly be a very important political consideration for whether the Commission would desire to launch such a procedure.

Finally, the Commission agrees with the European Court of Justice that the main purpose of PNR agreements is police and judicial cooperation, and not data protection. That was confirmed in 2005 by the European Court of Justice in the US PNR case. It was clearly stated that PNR agreements should be drawn up using the legal bases for police and judicial cooperation.

On the US agreement, you asked whether there were any bilateral agreements between the US and Member States on PNR. This issue was discussed in detail in this House in October 2010. The US signed a memorandum of understanding with several Member States as part of the Visa Waiver Programme. The memorandum of understanding was intended to commit the parties – the US and the specific Member States – to enter into negotiations on passenger information, information on the screening of known or suspected terrorists, information to combat terrorism and serious crime and information on migration and border security matters.

The memorandum of understanding was not intended to be in itself the legal basis for the exchange of data between that Member State and the US. It merely expressed the intention of the two parties to have specific agreements to govern the exchange of data. Only such an agreement would then be the legal basis for exchanging data.

In order to implement the memorandum of understanding, the US and the relevant Member States signed only two types of agreement, namely agreements on enhancing cooperation in preventing and combating serious crime and agreements on the exchange of screening information concerning known or suspected terrorists.

Following that debate, and in the context of the negotiations, we again examined the issue, and asked both the Member States and the US whether there were any bilateral agreements between them on PNR. Both sides replied categorically negatively. Both the Member States and the US assure us that the only agreement regulating PNR is the one that the US signed with the EU in 2007. No further agreement exists.

Secure flight data are not to be confused with PNR data. They differ both in nature and in function. They are much more limited in scope since secure flight data include only the name, date of birth and gender of passengers. Such data are used by the US authorities exclusively to prevent individuals already known to pose a security risk – i.e. those on the US no-fly list – from boarding an aircraft. Secure flight data is collected by air carriers on behalf of the US authorities and PNR data is collected by air carriers for their own commercial purposes. To reduce their economic burden, carriers generally choose to provide the required secure data with the PNR data to the US Department of Homeland Security (DHS). On receipt, the secure flight data is retrieved from the PNR and stored separately for seven days and then deleted.

Another very important issue is ad hoc ‘pulls’ by the US authorities. Last year’s joint review acknowledged that there was a problem with regard to both the number of ad hoc requests for PNR data and the fact that the DHS executed such requests by ‘pulling’ the data. It strongly called for improvements to this state of affairs and for the US authorities to step up their efforts to encourage air carriers to use the ‘push’ method of transmission only.

The US has acknowledged that the high frequency of ‘pulls’ is problematic. The issue is being re-discussed in the context of negotiations with the US on the new PNR agreement. The Commission’s aim is to ensure that data are transferred using the ‘push’ method, with recourse to ‘pulls’ only in strictly limited circumstances.

Finally, you asked about the opinion of our Legal Service. I can say that the Commission is seeking improvements to the text on a small number of key issues. We have emphasised to the US that the support of both the Council and the Parliament is needed for the final outcome of the negotiations.

On the issue of the transfer of data between the US and Canada, this was, and continues to be, governed by the memorandum of understanding signed between those two countries. Its purpose is the sharing of ‘look-out’ and advance passenger information data between Canadian border service agencies and the United States Customs and Border Protection to identify high-risk travellers and facilitate the flow of legitimate persons across the border.

We have carefully assessed these agreements on a strictly confidential basis and we are convinced that they do not violate the PNR agreements with either country.

I am sorry this was long but there were very many questions that I had to answer. I hope I have adequately answered the questions asked in this plenary.

Firstly, I am intrigued to hear about the plans for a multilateral agreement for all the other countries. I am wondering why they get different treatment and when this will start, because some countries are already asking for PNR.

Secondly, on the legal opinions of the Commission and Council Legal Services, they were actually not on minor issues. They went right to the core. They challenged the core: the proportionality and the necessity of long-term storage. I would like to hear a little more about that.

Thirdly, regarding the legal basis, the European Court of Justice did not confirm police and justice cooperation as a legal basis; it simply rejected Article 95 – internal markets – as a legal basis.

Finally, Commissioner, on ‘push’ and ‘pull’, the Parliament’s resolution is crystal clear: ‘push’ only. No ‘pull’: not even a little bit of ‘pull’. It is like being pregnant: you cannot be ‘a little bit’ pregnant. There is no such thing as ‘a little bit’ of ‘pull’. ‘Pull’ is giving a log-in to a third country. ‘Push’ only!

Claude Moraes (S&D). - Mr President, as one minute is not long, could I just check whether the Commissioner answered the question about the scope of the US agreement. I am not sure if we heard your answer to that.

You have said what the status of the various negotiations is. For the Socialist and Democrat Group there are currently too many differences between the PNR negotiations. It is important that, regardless of what third state we are negotiating with, we build on common principles.

Secondly, we cannot have vastly different standards of protection for European citizens depending on which third state they are flying to. By doing this we risk creating an incentive for Member States to begin to develop bilateral agreements which will then undermine our work at EU level. We should ensure full respect for the Charter. The scope – as everyone has said – should not be unnecessarily wide. Data retention periods should respect the tests of proportionality and necessity and we should have proper redress.

All of these principles are still up for grabs in some of the negotiations. If the EU institutions’ own legal services are providing opinions against the current status of negotiations, then we should listen and ensure the agreements we put in place respect the fundamental rights of EU citizens.

Cecilia Malmström, Member of the Commission. − Mr President, I will comment on a few specific questions.

The multilateral agreement that was announced in the communication on external PNR – where we also outlined a few guiding principles – will be based on the Australian system. On the legal basis, the Parliament’s Legal Service said in 2007 that the correct legal basis was police cooperation. With regard to the costs of the EU PNR, an impact assessment and an independent study have been conducted on costs. They are on our website and Members are welcome to look at them.

Let us be very clear about what we discussed today. Today we have three agreements with Australia, Canada and the US. We have decided jointly to renegotiate them. What we have achieved so far is a huge improvement, but there are no texts before you today to vote upon because negotiations are still ongoing.

I am here today to answer a few questions and I hope I can provide some clarifications. I am willing to hold further discussions, but we already have agreements and we are trying to make improvements to them. So far we have improved them immensely in terms of definition, clarity, data protection and legal clarity.

There will be developments and processes will be defined, but let me remind you that a country has the sovereign right to decide who can land on its territory and to impose certain conditions. We cannot change that.

I cannot discuss ongoing negotiations; I cannot go into details. I cannot comment on leaked documents. I have tried to provide as much information as possible to the coordinators, the rapporteur and the Committee on Civil Liberties, Justice and Home Affairs. I am willing to continue to do so and to discuss all texts we draw up as the process continues.

I am quite positive that we will reach an agreement that considers both the necessity to protect our citizens against terrorism and organised crime and that also includes robust provisions on data protection. But today we were here to answer questions on certain issues. I have done my best to do that. I am sorry if you do not like the answers but there is nothing to vote on today. Hopefully there will be before too long and then we will most likely have the chance to discuss it.

In the meantime the Commission is available to provide information. Mr Priebe will come to the committee tomorrow to give further information on the necessity and proportionality of PNR and provide some statistics. We are willing to come and see Members at any time to inform them and discuss specific details.